To reform small house policy, Hong Kong must heed the concerns of its indigenous villagers

Malcolm Merry says any review of the small house policy must address indigenous villagers' argument that it is a rightful way for them to share in HK's prosperity

PUBLISHED : Tuesday, 02 June, 2015, 4:00pm
UPDATED : Tuesday, 02 June, 2015, 4:00pm

Criticism of Hong Kong's small house policy and suggestions to change it have force but they do not address the arguments of the indigenous community or show understanding of the rural viewpoint.

To older indigenous people, the turning of the small-house right into money is an exercise of traditional freedoms and a form of participation in the prosperity that Hong Kong has enjoyed during the past 60 years. In that time, the old stability and certainties of their communities have gone. A quiet farming life, centred on village, family, custom and land, has given way to a hectic, more commercial existence.

Those that held land near the new towns have seen the government take it and sell it to developers who in turn have made handsome profits from building flats there, so that purchasers from town can live in more pleasant conditions. For much of this period, the property market has boomed.

It is surely no coincidence that the small house policy, which provides subsidised land for the building of houses for indigenous families, was introduced during an era of great expansion of public rental housing and construction of new towns. The policy was seen by rural folk as a reward for their cooperation.

To villagers, it is simply unfair that the rest of Hong Kong should enjoy the benefits of the transformation made possible by the development of the New Territories, yet at the same time resent the desire of the descendants of its original inhabitants to have a share of those benefits. They see it as inconsistent of the Hong Kong government to proclaim its belief in the free market yet try to prevent them from selling their rights and their land to the highest bidder.

The rural congress, the Heung Yee Kuk, does not accept as legitimate the restrictions that the administration has tried to impose on those rights, including limits on the size of houses and conditions upon qualification for a land grant. It argues that before 1898, their forefathers could build on their land freely and the restrictions are a breach of the promises made by the British that there would be no expropriation of land or interference with custom.

The kuk does not recognise the small house policy as being aimed at alleviating rural housing need. It regards it as an overdue recognition and facilitation of its members' landed interests. Any ending of the policy would, it says, attack their core values.

In answer to those who say that this is all history and that, since 1997, there has been one special administrative region, with no room for special privileges for some, the kuk points to Article 40 of the Basic Law. The existence of this provision is testimony to the lobbying power of rural interests. Article 40 obliges the government to protect the lawful traditional rights and interests of the indigenous inhabitants of the New Territories. Any change in the policy would therefore be unconstitutional, it is argued.

There are weaknesses in those arguments. For instance, how can a government policy instituted in 1972 be traditional? And how can there have been a tradition of building without restriction when nearly all the village houses recorded at the beginning of the 20th century were clustered together in rows (by habit and for security) and were truly small, each about one-fifth of the size of the modern Spanish-style villa? But the arguments give an indication of the mindset of the leaders of the rural population who promoted Article 40.

Any review of the policy would have to take account of these arguments and of the rural point of view. There are indications, not least in the results of Civic Exchange's recent poll of indigenous males, that attitudes may be shifting among younger villagers.

But the government remains reliant upon the support in the Legislative Council of the kuk, which is a functional constituency with one of the smallest electorates and which also has a representative on the Executive Council. Until that reliance changes, it is difficult to see a review making headway.

Malcolm Merry is an associate professor at the Faculty of Law, University of Hong Kong, where he teaches land law